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Contents
Introduction 5 1.1 1.2 1.3 How to study jurisprudence 6 Reading 7 Preparing for an examination in jurisprudence 9
Introduction
This subject guide has been written to show you how to lay a solid foundation of knowledge and critical understanding in Jurisprudence and Legal Theory. This will help prepare you, ultimately, for the examination. The guide is not intended as a primary source, or a textbook, and it would be a mistake to treat it this way. The best way to study is to commit yourself to a sustained reading and writing programme from the beginning of the first term. It is typical for an internal student at the University of London to spend two hours in seminars each week for Jurisprudence throughout the academic year and, in addition, the equivalent of further full days work in the library, reading and taking notes. In the two months before the examination, he or she would normally begin to formulate coherent thoughts in the subject by practising trial paragraphs, series of paragraphs, and finally essays. The activities and sample examination questions in this guide are designed to help you develop these skills. If you follow this pattern and, better, if you are able to let someone else read what you write and discuss it with you, you will place yourself in the best possible position for achieving an excellent mark in the examination. Jurisprudence can be enjoyable. The questions it deals with are very important and they constantly impinge upon the consciousness of all lawyers. You really can go a long way with this subject by a relaxed reading of a variety of jurisprudential writing.
Learning outcomes for this Introduction By the end of this Introduction, and the relevant reading, you should be able to: state the intended learning outcomes of the module decide which books to buy and obtain them locate and distinguish the primary and secondary sources devise an appropriate structure for an examination question in Jurisprudence.
Freeman, M. (ed.) Lloyds Introduction to Jurisprudence. (London: Sweet & Maxwell, 2001) seventh edition [ISBN 0421690208]. Dworkin, R. Laws Empire. (Oxford: Hart Publishing, 1998). [ISBN 1841130419] Chapter 1. MacCormick, N. and W. Twining Legal Theory and Common Law in B. Simpson (ed.) Legal Theory and Legal History: Essays on the Common Law. (London: Hambledon Press, 1987) [ISBN 0907628834] Chapter 13. Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Clarendon Press, 1983) [ISBN 0198253877] Chapter 1: Definition and theory in jurisprudence (also in 70 Law Quarterly Review 37). Fuller, L. The Speluncean Explorers in Freeman, pp. 5163 (also in 62 Harvard Law Review 616) (see above).
Chapter 2.
1.1
Chapter 1 Introduction
1.2
Reading
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Essential reading2 Freeman, M. (ed.) Lloyds Introduction to Jurisprudence. (London: Sweet & Maxwell, 2001) seventh edition [ISBN 0421690208]. Penner, J. et al. (eds) Jurisprudence and Legal Theory: Commentary and Materials. (London: Butterworths LexisNexis, 2002) [ISBN 0406946787]. Hart, H. The Concept of Law. (Oxford: Oxford University Press, 1994) second edition [ISBN 0198761228]. THIS IS THE SET BOOK AND IT IS VITAL THAT YOU BUY IT. Recommended texts The following are books that could be usefully bought, but if they are readily available from a library, that is fine: Dworkin, R. Laws Empire. (London: Fontana Paperbacks, 1986) [ISBN 0006860281]. Hart, H. Essays in Jurisprudence and Philosophy. (Oxford: Oxford University Press, 1983) [ISBN 0198253877]. Morrison, W. Jurisprudence: From the Greeks to Post-modernism. (London: Cavendish, 1997) [ISBN 1859411347]. Simmonds, N. Central Issues in Jurisprudence: Justice, Law and Rights. (London: Sweet & Maxwell, 2002) [ISBN 0421741201]. Useful further reading Other works that you will find useful throughout the module are: Berlin, I. Two concepts of liberty in Four Essays on Liberty. (Oxford: Oxford University Press, 1979) [ISBN 0192810340]. Cotterrell, R. The Politics of Jurisprudence. (London: Butterworths Law, 2003) second edition [ISBN 0406930554] Chapter on Bentham and Austin. Devlin, P. The Enforcement of Morals. (Oxford: Oxford University Press, 1965) [ISBN 0192850180]. Dworkin, R. Laws Empire. Chapters 1, 2 (particularly pp. 7686), 3, 5 (particularly pp. 16475), 6, 7, 8 and 10. Dworkin, R. Taking Rights Seriously. (London: Duckworth, 1977) [ISBN 0715611747] Chapters 4 and 5. Fuller, L. Positivism and fidelity to law a reply to Professor Hart (1958) Harvard L.R. 690 (extracts in Freeman, pp. 370373). Guest, S. Ronald Dworkin. (Edinburgh: Edinburgh University Press, 1997) second edition [ISBN 0748608052] Chapters 2, 3, 4, 7 and 8. Guest, S. (1988) Law Quarterly Review 155 (Review of Laws Empire). Hart, H. Essays in Jurisprudence and Philosophy. Essay 1 (particularly pp. 2135), Essay 2, Essay 3 and Essay 16. Hart, H. Law, Liberty and Morality. (Oxford: Oxford University Press, 1962) [ISBN 0192850172]. Hohfeld, W. Extracts in Freeman, pp. 510514. Rawls, J. A Theory of Justice. (Oxford: Oxford University Press, 1972) [ISBN 0198243685] pp. 2227, and pp. 4653. Raz, J. The purity of the pure theory (1981) in Freeman, pp. 32737.
University of London External Programme
essential reading texts simply by the authors name: Freeman, Hart etc.
Simmonds, N. Central Issues in Jurisprudence. Chapters 1, 3, 5; pp. 5862 (including suggested reading); and Chapters 8 and 9, particularly pp. 13552, including reading. Waldron, J. Law. (London: Routledge, 1990) [ISBN 0415014271] Chapter 5. Williams, B. The idea of equality in P. Laslett and W. Runciman (eds) Philosophy, Politics and Society. (Oxford: Blackwell, 1962) [ISBN 0631048804] p.125.
1.2.1
1.2.2
Chapter 1 Introduction
demonstrate an ability to think in a more abstract or general fashion than is generally achieved in the study of specific areas of law demonstrate a willingness to question and think independently and to find out more demonstrate systematic reading demonstrate a thorough reading of Harts The Concept of Law, showing a sympathetic yet critical appreciation of the major arguments of that book. These outcomes are related. Reinforcement of what the examiners are looking for will be found by studying past examination papers in which you will spot the familiar forms of questions and format. How well you read around the subject is crucial to how well you do in the examination. The examiners do not want to read parroted pieces of information. Such answers will fail. Topic spotting will not do either. The present syllabus is short enough for all topics to be covered and for all of them to be approached in an intelligent and systematic way.
1.3
1.3.1
Content Here is an example of the content that should be in the answer: A clear and reasonably detailed account has to be given of utilitarianism. You should see the subject guide Chapters 3 and 13 and you should return to what I am saying here again when you have mastered the reading in those two chapters. This account would have to be fair to utilitarianism as well as being fair to its critics. If, for example, you were a utilitarian, it will help your case to make the version of utilitarianism you accept as strong as possible and it will also help that you can handle the strongest criticisms that can be made of it. If you are a utilitarian, then probably the strongest form will be some form of rule utilitarianism, because that can most easily explain the status of moral and legal rights. Orientation What is also required is an orientation of your own. This means stating clearly whether you agree or not, giving reasons. Giving reasons is important because it is typical for
University of London External Programme
candidates to say in an examination that they either agree or disagree with some proposition without saying why. In a courtroom, as a future lawyer, would you think it was acceptable, to your client, to the judge, simply to say I disagree with the argument on the other side? Of course not! So, you might say something like the following in this part of your answer: Critics of utilitarianism emphasise3 the strength of our moral intuition that people have rights the right, for example, not to be killed. They say that the existence of these rights defeats a utilitarian calculation that the greater good would be served by killing, as, for example, in cases where to remove feeding tubes from irreversibly comatose patients would conserve hospital beds and save money, or where to kill a drunk tramp (secretly, painlessly and unbeknown to him) would contribute to cutting petty crime. This argument is powerful because it focuses on the ultimate reason for preferring utilitarianism, namely, that it is people who are the recipients of acts directed at the public good and so suggests that utilitarianism is fundamentally confused. But there are two answers to this powerful objection. The first is that, because the rationality of the utilitarian doctrine lies in the fact that it describes practically all of our intuitions, it can lead us to better conclusions than our intuitions can in troublesome cases. The second is that we can say that there is a rule that we must not kill, under which irreversibly comatose people and tramps have rights to life, and observance of that rule in all cases in the long run leads to the greater good. These two solutions point in different directions. In my view, the second is to be preferred because that is more reconcilable with our intuitions than the first. It is difficult to be told, as Smart tells us, that on occasions we must not be morally squeamish about doing what utilitarianism requires for, after all, morality requires that we care, and must do so in every case. But rule utilitarianism reminds us that people have rights and so that intuition is satisfied and in terms of a theory which ultimately relies on our aiming for the morally good consequences for society.
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1.3.2
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Chapter 1 Introduction
done it. You must tell the examiner that you are, or are not, a utilitarian! Finally, the following is designed to get you to see what would be very desirable in answering the question. A jurisprudence answer must show knowledge, independent thought and the ability to argue. In addition, it must show an ability to cross-reference to other ideas and writers. This last is essentially the ability to think abstractly. Note the reference to rule utilitarianism and to Smart in the above two paragraphs about utilitarianism. Use examples. It is always helpful to show your awareness that jurisprudential questions must be tested against real life. Note the reference to the irreversibly comatose patient and to the drunk tramp in the above.
Reminder of learning outcomes By this stage you should be able to: state the intended learning outcomes of the module decide which books to buy and obtain them locate and distinguish the primary and secondary sources devise an appropriate structure for an examination question in Jurisprudence.
Good luck! Stephen Guest, Adam Gearey, James Penner and Wayne Morrison. July 2004
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Notes
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